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Compulsory or Permissive Counterclaims

Under the Federal Rules of Civil Procedure, a counterclaim arising out of the same transaction or occurrence as the claim in the complaint is compulsory and the defendant must raise the counterclaim in the answer. A compulsory counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). Failure to assert a compulsory counterclaim in the answer precludes a later assertion of that claim in a subsequent or independent action, but failure to assert a permissive counterclaim does not preclude its assertion in a subsequent action. See 46 Am. Jur. 2d Judgments § 504.

In New York state courts, the rule is that all counterclaims are permissive. Urbanski v. Urbanski, 107 Misc. 2d 215, 215, 433 N.Y.S.2d 718, 719 (Sup. Ct. 1980). In New York, failure to state a counterclaim in the answer does not preclude the defendant from subsequently bringing an independent action against the plaintiff.

Discuss which approach you think is better: the federal rule requiring a compulsory counter-claim involving the same transaction or occurrence or the New York state rule where all counterclaims are permissive.

In addition, what do you think the phrase “transaction or occurrence” means under the Federal Rules of Civil Procedure? Conduct research and summarize one federal case that discusses “transaction or occurrence” in the context of compulsory or permissive counterclaims to share with your classmates. Make sure to provide the Bluebook citation for the case you select.

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